Maguire v. Yanke

P.2d MAGUIRE, Plaintiff-Respondent, Jack YANKE, Defendant-Appellant.

Sheldon

No. 12596.

Supreme Court of Idaho.

Dec. 1978.

Rehearing Denied Feb. were not located in a

erties herd district. received Testimony was that the area had historically one of enclosed lands. On numerous occasions between mid-July 2,1975, August 1975and several of Yanke’s through pasture cattle broke fence and strayed Maguire’s onto alfalfa land south of 2, 1975, August major road. On occurred, breakout of Yanke’s cattle approximately 137 head of cows and calves Maguire’s hayfield. time, entered At the Maguire baled hay had the field which substantially damaged was by the cattle. Substantial was also done to the growing crop hay. second When Ma- guire breakout, learned of the Yanke was called promptly cattle were re- Donart, Ketchum, for James B. defend- moved.

ant-appellant. Maguire thereafter filed this action Robson, Brady of Croner & Michael G. against Yanke for damages. Maguire Boise, plaintiff-respondent. Brady, $3,818 sought $10,000 actual damages and punitive damages. The district court DONALDSON,Justice. Maguire $3,818 awarded judgment 1975, Claude Porter leased a tract compensate him for his damages. actual located in Blaine property County from The district court refused to any pu- allow Inc. Properties, The McCulloch McCulloch nitive damages, finding that Yanke had not situated property approximately is one and wilfully. acted In finding that Yanke was three-quarter Hailey, miles west of Idaho. liable for the done the cattle to property Croy The intersected land, Maguire’s hay and the district court Road which runs in an Creek east-west di- stated in its conclusions of law: 6, the property. rection across On June 1975, subleased to the plaintiff-re- Porter I

spondent Maguire, some 82 acres located on Croy the south side Creek Road. The 82 It was the lawful duty of Yanke to hay were described as acres and alfalfa maintain his fences so that his cattle land, Maguire used the property for escape through would not the same. This hay. hayland The raising was surrounded duty through agreement arose with but the fence was in by a fence a state of Porter as well as the fact it disrepair. Sometime June Porter illegal trespass upon for Yanke’s cattle to the defendant-appellant subleased to Yanke road. county on the property north side of Croy pasture Creek Road. This was also The agree-

land and fenced. lease II Yanke provided ment between and Porter In addition to ConclusionNo. it was pasture that Yanke would cattle on the duty keep of Yanke to his cattle land, and Yanke fence would maintain the fenced in because this was not an pasture around to ensure confinement range area, and was an area of enclosed 1975, Yanke of his livestock. In June See, lands. I.C. 25-2118 and cows, Soran v. into calves, moved 130 130 8 bulls Schoessler, ([87] prop- [425]) pasture. Maguire The Yanke P.2d 160. I rejected Western cattle states generally law, holding the common trial that Maguire court reasoned roaming trespass committed no Yanke’s cattle his had no to fence off strayed they road when county since it bordered on unenclosed property, private legally trespass cattle could not Scott, Range land.1 See Cattle Indus upon; and in addition that was Yanke’s try: Law, Its Effect on Western Land his cattle fenced in because Idaho, (1967). Mont.L.Rev. concurring the land was situated in what was histori- approach states, neighboring its an cally area of enclosed lands and not rejected also law Kelly common rule. range. Easton, 207 P. 129 contends the court Yanke trial erred Co., Oregon Johnson v. Line Ry. Short allowing Maguire recovery damage 63 P. 112 The Idaho rule crops Yanke’s cattle when was stated as follows: “The common-law is Maguire’s land not located in a every rule that man must confine his own by a legal district enclosed fence. Yanke cattle to his own land does not obtain that, argues exception with the of herd state, Brown, in Strong this v. 26 Idaho live- districts and to motorists for 1, 773, L.R.A.,N.S., 140, 140 P. 52 Ann.Cas. long- stray highways, stock is a 1916E, 482, held it is that under our statute standing rule in Idaho that (C.S., 82), c. a landowner if fails to fence graze upon unen- permitted to roam and liability accruing lawfully large, at any may lands without out he closed damage for to the owner of recover for loss caused such livestock by them. caused straying upon his Kelly unenclosed land.” Easton, 344, relating law to the liabili- v. 35 Idaho at 207 P. at A review of the 130 damage However, an owner of livestock ty of one will who omitted]. [citations straying on another’s caused his stock fully deliberately drives his stock necessary to resolution of is another, the lands of whether enclosed or case. At common presented issues grazes unenclosed and them such land live- duty of the owner of law it was the owner, of permission without in, them to fence stock in damages trespass. liable for the Lazarus to landowner placed upon adjoining 81, 14 477, Phelps, 152 U.S. S.Ct. 38 L.Ed. 49 4 Am.Jur.2d Animals § them out. fence Groat, (1894); 148, 363 Swanson v. (Second) (1962); of Torts Restatement (1906). 384 85 P. 504(1) (1976). The of livestock owners § their caused were liable for the provide In an to remedy effort a land whether straying another’s stock property landowners whose damaged early not. land was enclosed or An cattle, by roaming most western states in- English case stated the rule as follows: passed cluding Idaho fence laws. Idaho wrong own “[Wjhere my beasts of their 35-101 and 35-102 Code define what §§ an- my knowledge will and break without legal fence, constitutes a prescribing stan- punished, close I for I am other’s shall relating height, length, to dards number of . trespasser my beasts . rails and materials. Idaho Code 25-2202 § keep my am held the law beasts for I provides that a landowner who his encloses doing anyone.” their W. wrong without legal with a fence has a cause of Prosser, (4th of Handbook Law of Torts 496 against of VII, 3b, action owner animals that 1971), Keilwey quoting 12 Hen. ed. Eng.Rep. United 72 break enclosure.2 States (1901); breaking 2. “25-2202. Animal 1. Ariz.Rev.Stat. 3000 Mont.Penal inclosure —Re- Code, 1185-1187; Nev.Comp.Laws covery damages. any 1895 of animal §§ before men- —If 1900); N.Mex.Comp. (Cutting, through any 4884-4885 tioned into breaks inclosure §§ conforming requirements chap- N.Dak.Rev.Codes fence Laws of 35, (1895); Wyo.Laws, Legis. must, 3rd ter of title the owner of such animal §§ Sess., pay trespass, party injured for such ch. Court, commenting on a Texas but do not wish or Supreme cannot afford to fence law, at Phelps, in Lazarus U.S. fence their et seq. land. Idaho Code 25-2401 object of such at states 14 S.Ct. permits a county petition districts within fence statutes: for the creation of a a herd district. If are, were,

As there state majority of the landowners owning more Texas, as well as in the newer states fifty percent than of the land in the district land, generally, vast areas the west district, vote create a herd livestock are which, government long over so as the prohibited from within the them, permitted to cattle had been owned district, may and a landowner recover for pasturage, it was roam at will damages caused animals straying upon thought proper, gradually as the land was property, regardless of whether it is up by proprietors, taken individual legal enclosed In fence.3 essence the change country the custom of the in that creation of a herd district in Idaho rein- oblige particular, and cattle owners English states the common law within that heavy expense fencing incur the district, placing on the livestock land, trespassers be held as reason owner to fence in his holding stock and him accidentally straying upon their cattle liable for if his stock es- the land of others. land, capes regardless onto another’s legal fence laws of the State whether that land is fenced or not. provide remedy the landowner Legislature amended le property, although by enclosed a whose law, 25-2402, the herd district to § not fence, by gal damaged is nonetheless roam open allow inclusion of range in a herd Contrary ing finding cattle. to district.4 Open range was defined as fol- case, legal trial court in the instant lows: “all uninclosed lands outside cities fence laws of the State of Idaho are “fenc villages upon by custom, and which license legal out” statutes. ing These fence stat otherwise, livestock, swine, or excepting are right the rancher’s to recognized utes allow grazed permitted or to legisla- roam.” The cattle to roam. ture also to provision added the section a Although the pre “fence out” rule excepts from the herd application of state, in this there important vails are some any district laws roaming stray- or legislative exceptions to the rule. ing into the open range, district from unless other western provide and states for the by the district is legal enclosed a fence. of herd creation districts as an alternative to protect landowners who wish to their the Idaho Legislature damage stock, from by roaming statute, 25-2118,5 land caused passed relieving a I.C. § damages by livestock, swine, full amount of excepting he has sustained cover which shall roam, trespass, stray open range reason of such to be recovered with drift or from into the any jurisdiction.” having by costs in court district unless the district shall be inclosed pene- guards lawful fences and cattle roads livestock, trating prevent part: 3.I.C. 25-2402 reads in the district so § swine, excepting roaming, drifting from or “Petition for district.—A straying open range from into the district . . . any by landowners in area or district described Open range all means uninclosed lands out- including open range metes and bounds custom, villages upon side cities in, qualified who are also resident livestock, otherwise, excepting license of, may petition electors the state of Idaho swine, permitted grazed or roam.” are county writing board of commissioners petition create such area a herd district. Such Sess.Laws, 264, p. ch. 674. 1963 Idaho pro- shall describe the said boundaries of the district, posed designate herd and shall what horses, species mules, asses, range—No duty open animals 5. “25-2118. Animals on cattle, swine, sheep goats keep highway.—No person owning, it is desired to from running of, prohibit large, prohibiting controlling possession any from also domestic ani- being public open range, duty animals from said herded mal on shall have the district; highways any designate keep highway such off and shall such animal on such apply range, damage any the herd district shall not to nor and shall not be liable for roaming open required owners of livestock to fence their stock in and are duty keep of the such stock off the damages not liable for caused their stock highway absolving them of to another’s land unless the landowner’s damages caused a collision between a is legal enclosed fence ob- vehicle and the livestock. Open range was tains. defined as “all uninclosed lands outside of The trial court held that it duty was the villages keep of Yanke to his cattle fenced in be- custom, license, which cattle lease or cause the area was an area of enclosed permit, grazed permitted to roam.” open range. lands and not located in Testi- impliedly Idaho Code makes § mony was received at trial that the area in person owning, or control- question had one enclosed livestock, ling possession permitted where cattle were not to roam any highway them off not located in years for more than witness could re- range; and does not person absolve such a contrary. appears member to the It a collision testimony and the trial relied court on this animal, between a vehicle and the unless definitions of contained in highway range. Whitt v. determining 25-2402 in the area was Jarnagin, 91 Idaho 418 P.2d 278 placing not in and thus Pearson, Corthell v. 399 P.2d Maguire Yanke to fence his livestock in. right concurs with the trial court that freely of livestock to roam is restricted to II “open range” controlling and that the defi- prior review of Idaho law re “open range” nition of is contained in I.C. geographical veals that there are two areas which includes villages other than cities and recognized in only land historically livestock were this state in relation to the liability of live grazed to roam. stock owners for done First, essence, stock to another’s land. This analysis, creates third districts pursuant created to relating damage 25-2401 et area to caused seq. where within the district the English by roaming com livestock. This area would en- prohibiting custom, mon law rule of compass livestock from by all land which livestock large license, lease, is reinstated. Since 1963 permit permitted or are not to herd districts could not contain “open graze. region, roam at or In this a range,” which was defined as “all uninc livestock duty owner would have a to fence villages land outside cities and in, losed which his cattle duty and there would be no custom, otherwise, livestock, by license or a landowner to fence cattle out in order to swine, excepting grazed permitted are or to by roaming recover caused live- Sess.Laws, roam.” 1963 Idaho ch. p. stock. 674. The second area contains Yanke contends the trial by as defined I.C. 25-2402 and all court erred using analysis the above in

other areas of the state not within determining he villages, already duty or created herd districts. had a to fence his cattle in. may argues Herd districts be created in this area Yanke this Court’s protection rejection by against English the landowners for of the duty common law long so roaming livestock land in to one’s livestock enclosed in Johnson “open range” Co., is other than question Oregon Ry. Short Line by defined I.C. 25-2402. It is this area adoption of the duty rule of no to fence cases, where the rule that livestock owners are in livestock plus in later the enact- injury any person riding by custom, license, vehicle or for to there- which cattle in, lease, by permit, grazed permitted a caused collision between the vehicle or ‘Open range’ and the animal. means all uninc- roam.” cities, villages of losed lands outside We by Legisla- have extensively laws statu- ment of fence reviewed the this state ture, firmly that within establish tory and case law Washington, Oregon, of a owner to duty for livestock there is no Montana, Nevada, Colorado, Wyoming, Ari- that not- cattle in. Yanke asserts his fence zona and New sup- Mexico and we find no ques- withstanding that the area the fact port appellant Maguire’s position not one where custom tion was that a livestock owner duty has a to fence roam, no liabil- grazed his stock in areas where livestock have not owner for dam- ity attaches to historically grazed or permitted to straying onto anoth- age done his stock roam. On the contrary, these have states land, damaged unless the landowner’s er’s adopted general livestock own- with a fence. legal is enclosed ers may range their in all stock areas argues only method Yanke state with obligation prevent them may relieve himself of which a landowner entering place premises fence livestock out and the unenclosed duty to fence duty the livestock owner require another. These states that a land- district. in is the .creation a herd his stock owner cannot recover for damage to his agree. We lands trespassing caused livestock unless English abrogation of common their land was enclosed a legal fence.7 of a livestock owner to fence his law In Washington, Oregon, Montana, Wyo- passage and the of fence laws stock in ming, New Mexico and Arizona respec- on the placed which landowner legislatures tive adopted state legislation, phenomenon out is a fence livestock equivalent law, our herd district cattle states.6 Since the western western permit certain counties parts adopted response such rules in to a states states vote of the people within early problem during the settle- common such region in the late subdivision to determine ment of 1800’s and whether live- 1900’s, Idaho, a early as did review these stock should continue to run allowed question a live- approach states’ at large and landowners be compelled to stock owner’s rely legal on a for protection, fence trespassing helpful stock would be whether livestock owners should be re- determining meaning legis- of our own quired to fence their stock and landown- “Countless avenues and forms of lation. ers allowed recover for damage caused among and interaction communication by trespassing stock, regardless of whether jurisdictions lead so much parallelism their land by legal is enclosed fence.8 among the laws of different states as the legislation case law jurisdic- from these emulation, adaption outright result of tions shows all clearly that in other areas in patterns copying that common and standard designated state not as herd districts dealing problems with common modes of permitted livestock are to run at large evident.” Statutory become Sutherland it is the of the (4th landowner to fence the Construction 52.03 ed. Sands rev. § 1973). stock out. supra; Scott, Phelps, Range (1956); v.

6. Lazarus The Stat. 24-344 § Colo.Rev.Stat. 35-46- § Industry: (1973); Its Effect Cattle on Western Land 10 Mont.Rev.Codes Ann. 46-1409 § Law, supra. (1947); (1977); Nev.Rev.Stat. 569.450 § N.M. (1953); Stat.Ann. 47-17-2 § Or.Rev.Stat. 10, Bojorquez, Ariz.App. v. 13 7. Ricca 473 P.2d (1977); § 608.015 Wash.Rev.Code 16.60.015 § Gates, 571, (1970); 812 Bolten v. 105 Colo. 100 (1976); Wyo.Stat. (1977). § 11-33-110 (1940); Mills, 82, P.2d 145 Schaefer v. 72 Colo. (1922); Emigh, P. 643 Dunbar v. 117 Mont. 209 (1956); seq. 8.Ariz.Rev.Stat. 24-341 et §§ Chase, 287, (1945); P.2d 311 158 Chase v. 15 seq. Mont.Rev.Codes Ann. §§ 46-1501 et (1880); Wolfe, 601, Nev. 259 v. N.M. Grubb 75 (1947); seq. N.M.Stat.Ann. 47-13-1 et §§ Curl, (1965); 756 Kendall 222 408 P.2d v. Or. (1977); (1977); seq. Or.Rev.Stat. 607.008 et §§ 329, (1960); McAllister, Bly P.2d 227 v. 58 353 seq. (1976); §§ Wash.Rev.Code 16.24.010 et 709, (1961); 364 500 Stilwell Wash.2d P.2d v. Wyo.Stat. seq. (1977). 11-33-101 et §§ Nation, (Wyo.1961); 363 P.2d 916 Ariz.Rev. 836 of a restricting in livestock owner

The trial court erred to confine his stock to roam stock livestock owners that was right of abolished in by holding Idaho custom, by areas where only those Ry., in Johnson v. Short Line and to license, grazed livestock are permit necessity avoid the legal of a constructing adoption of such to roam. permitted fence as required I.C. 25-2202 order § areas herd districts in de facto rule creates to recover by trespassing have not 1963, custom where as previously discussed, stock. thereby renders I.C. to roam legislature inserted a definition of seq. unnecessary. The trial et 25-2401 § “open range” in I.C. 25-2402 and stated § effect, rules court, applied herd district that herd districts could not be created in roaming relating livestock to such area. is respondent It Maguire’s con- requiring areas without creation these tention that this definition of “open range” general It is of district. of a herd applied should be entire our of body case statutory that courts construction should rights law and limit thus of livestock deprive nullify a statute or a law of not owners to large roam their stock at unless such course is abso potency force “open range” as defined the statute. Gibbs, necessary. State v. 94 Idaho lutely This interpretation is inconsistent with not 908, (1972); Sampson Lay P.2d 209 v. 500 only law, our statutory case and rules of 453, (1963). ton, 883 It Idaho 387 P.2d 86 construction, statutory but also the common legislature in en appears intent pattern of dealing problem with this in the seq. I.C. et was that for acting 25-2401 West as evinced the laws of of eight our where historical use has been one areas 1963, sister states. Prior to herd districts lands, the enclosed landowners in could be any part created in of Idaho. It is petition designate must area vote clear the amendment of I.C. 25-2402 change district in order to that area herd inserting “open a definition of regarding liability law for dam the Idaho range” designed protect rights livestock. age roaming of livestock owners prohibiting dis- they tricts in areas where historically statutory definitions stock, grazed limiting rather than area set “open range” as forth in I.C. §§ livestock owners free to let inconsistent with the case and 25-2118 are their stock our large. roam Under deci- unfenced, concept law sion, may herd districts still be created in unenclosed, range, public domain or com “open range” area not within Easton, Kelly v. 207 P. mon. Idaho defined in The passage 25-2402. Brown, Strong (1922); with their (1914); City Daly, of Bellevue v. 140 P. accompanying “open range” definition 94 P. 1036 Swanson use, terms of historical was not intended to Groat, 85 P. 384 It is change and does law of this state understanding of common a matter that with exception villages, provisions purport do definitional may run at meanings what shall attach prescribe graze upon unenclosed lands in all all purposes terms for defined this state. only-establish what generally but contexts same they appear mean where they Statutory Construction Sutherland

act. Ill 1973). (4th Sands rev. 47.07 ed. § appeared The trial court also to finding duty to base its that Yanke had Prior to § range.” “open fence his the fact that no definition of cattle on the contained pasture grazed to be created in where the cattle were districts were allowed Herd permitted per aby highway. state. This bounded on one side Yanke of this any part duty keep area to reinstate have a to geographical within a did his stock off the sons English duty highway common law since his in that area the not located in open range under the definition of I.C. er’s property, unless the damaged landown- 25-2118. Idaho Code er’s is § § 25-2118 was enclosed aby legal fence. passed protect livestock run- owner Judgment reversed. ning open range stock on liability from caused collisions of with live- vehicles BISTLINE, JJ., McPADDEN and concur. stock; and, impliedly, place duty BAKES, Justice, concurring in the rever- running not range livestock owner sal, but dissenting disposition: in the keep the stock off the highway. The I disagree with majority’s analysis of seem, however, statute would to have refer- the law governing liability of owners existing relationship ence to the between for damage caused their trespassing live- inap- and motorists and is livestock owners stock and its conclusion that ap- defendant relationship live- plicable to between pellant Yanke cannot be held liable for the adjoining stock owners and landowners. damage his cattle plaintiff caused respon- statute, construing only not should Maguire’s dent hayfield. examined, legis- but terms of the statute The majority is correct in that stating collected from the lative intent is also to be English common law rule that an owner is law, context, necessity occasion strictly trespasses liable for of his animals felt, and from the reme- from the mischief has generally been applicable in Idaho. Bank, Ferry dy in view. Noble v. Glenns However, the rule which majority final- Ltd., (1966). It 421 P.2d 444 ly adopts after an inconsistent analysis, itself that the statute addresses is obvious frankly understand, some of which I do not increasing spread of problem cities, is for except villages and herd high-speed flow traffic highways and the districts, all land in the state of is grazing of through areas of “open range” upon which cattle can roam should be liability and where liability unfenced without incurring placed when a collision between its owners trespass. I do not believe itself It does not address and auto occurs. law in Idaho. a livestock question While the statutes and the cases have damage his stock owner “open range” concept addressed from adjoin- highway straying across a and on times, the earliest it was not until 1961 that property. had a ing landowner’s Yanke the legislature made attempt to define duty but highway, his cattle off the “open range.” year In that legislature was owed to motorists on that enacted I.C. 25-2118 providing road, to Maguire. owner a domestic animal on the “open range” strayed upon a high- holding The trial court erred way right way was not liable for damage that Yanke had a to fence his cattle to any injury person vehicle or riding Maguire duty to fence the and that had no therein. That statute defined “open range” the dam cattle out in order to recover for cities, “all uninclosed lands outside of straying occasioned ages villages which cat- stated is that simply his land. custom, license, lease, tle or permit, are state, exception of in this with the all areas grazed to roam.” In 1963 the districts, villages, and there is legislature law, amended the herd district confine his a livestock owner to duty for no similarly define his own land and that cattle to range.”1 refuses to follow owner to that livestock express legislative attaches those two definitions of states, straying “open range.” onto anoth- It his stock ante occasioned livestock, swine, excepting grazed “all per- 1. I.C. 25-2402 defines villages cities mitted to roam." uninclosed lands outside upon otherwise, custom, by or license which range’ The ‘open majority asserts, statutory 90, definitions of ante at that “[t]he in Idaho there are only set in 25-2402 and 25-2118 two as forth I.C. classifi- § cations of land purposes for concept law with the case deter- inconsistent mining the liability of livestock owners unfenced, ‘open range’ unenclosed as damage by done their animals to another’s Kelly v. public range, domain common. land. cities, One class includes villages and 340, Easton, 35 Idaho P. districts, created pursuant to I.C. However, the case law . .” so-called et seq., 25-2401 §§ where animal owners concept “open range” majority which are strictly liable damage their animals Easton gleans Kelly from v. and other do to another’s property. The second classi- statutes, upon cited cases was based as “ assert, fication encompasses, they ‘open following portion Kelly by shown range’ defined I.C. 25-2402 all and opinion quoted by majority, ante at other cities, areas of the state not within 88; villages, already districts,” created herd “ every ‘The rule that man common-law 90, ante at where the animal owner

must confine his own cattle to his own bears damaged unless the prop- state, erty land does not obtain in this in and was enclosed a legal fence. The 1, majority Brown, case, reverses Strong claiming 140 P. the trial court erred in recognizing a L.R.A.,N.S., third 1916E, Ann.Cas. classification of relating land (C.S., it is held that our c. under statute roaming livestock. This 82), if a landowner fails fence out third classification would encompass land lawfully large, cattle at re- may he not custom, license, lease or cover for loss caused by such livestock ” permit permitted have not been to roam at straying his uninclosed land.’ large or graze. Although no statutory herd added.) (Emphasis may district have been created in these concept open range major- The which the areas, trial court in essence reasoned Easton, Kelly in ity found that the custom to fence in precludes cattle prior upon any cases not based common application of range open traditional concept, actually law or law case but was rules. I agree trial court that upon pronouncements by based the legisla- legislative “open definitions of range” which are chapter ture in 82 of the contained in Compiled Statutes I.C. 25-2401 and §§ support 25-2118 the conclusion Running Large entitled “Animals open range rule is not to be applied in Idaho Trespassing.” The majority’s conclusion to lands where custom have not legislative pronouncements that the clear permitted been to roam unfenced. I.C. 25-2118 are inconsist- §§ If, holds, as the concepts majority ent with case law all definitions land in Idaho either range district, in a herd open range fundamentally misconceives city village, there would be no land in early were the basis which those cases the state where a herd district be could decided. created. 25-2402 specifically states legislature has said in I.C. 25-2402 organized cannot be into “open range” includes and 25-2118 that herd districts. The majority avoids reach- only those unenclosed lands ing incongruous result that there is no custom, have license or otherwise livestock Idaho where a may herd district been roam. only by created saying, ante at apply in this rule which would legislature’s definition ease the facts of this inapplicable case is 25-2118 “was in- found, because, court the lands trial tended to and does change the law of question here not unenclosed lands this state that with the exception of custom, have upon which livestock villages, may permitted to license or otherwise run at graze upon unenclosed lands in this state.” roam. the two stat- contends that er majority grazing ranges. However,

The conditions in be con- definitions are to utory open range changed Idaho have substantially. This the operation no effect on having strued as Court not expand liability should rules tai- range law. These two open of the Idaho lored open for nineteenth century range only legislative defini- provisions are the practices in contradiction to the recent stat- in the range appear which open tions of utory enactments concerning open range hereafter, and, as this Idaho Code discussed when definitions the conditions for which judi- had occasionto define Court has never they were developed have substantially open in the state are cially which lands passed. errs in range majority I believe the lands. noted, previously As found legislative of assigning to our definitions open the definition of as range defined in im- “open unnecessarily narrow I.C. 25-2402 “inconsistent in this port to reach its result that it uses concept ‘open case law of [definition and] case. range’,” relying upon Easton, v. Kelly su- explic- definitions are legislative The two Brown, 1, pra; Strong v. 26 Idaho 140 P. concept “open range”. defining of (1914); City of Bellevue v. Daly, 14 judicial of In the other absence 94 P. 1036 and Swanson legislative of the term interpretation Groat, 12 Idaho P. 384 (1906). range” indicating statutory the two However, no Idaho case has addressed the provisions 25-2402 and 25-2118 in I.C. §§ issue of whether all lands this state out- extent delineating should not be used cities, villages side of and herd districts Idaho, open rules in this Court range “open range.” were def- arbitrarily should not decide that those inapplicable initions are to the determina- The first Idaho case in of point time to tion in this case. should liability We the open range mention rule Johnson v. that for interpret recognize our statutes to Oregon Co., Ry. Shortline 63 P. purposes determining liability tres- That case an interpre- involved animals, two, three, passing there are (1887), tation of Revised Stat. 2679 (1) range, classes Idaho: open of land in required railroads to along maintain fences -2402, where defined in I.C. their tracks whenever tracks passed have been custom through private or abutted property. This roam; (2) towns, villages Court held Revised 2679 [present- Stat. where owners liable for ly police was a amended] 62— by their re- trespassing animals “without regulation the benefit the general fence,” gard to the condition [their] public and was not a solely statute intended 25-2408; (3) non-open such as range, adjoining abutting private benefit the land in case which is in class neither landowners, as was urged by defendant (1) (2), nor where strict has not company. plaintiff’s railroad The fact owners, imposed animal but where right way animals entered the railroad the custom not been has to allow animals from private property owned graze unfenced. plaintiff prior by passing being struck practices Present conditions and in Idaho train was held not to recov- plaintiff’s bar expansive are inconsistent with the defini- ery. meaning Johnson did not decide range major- tion open enunciated range and extent of the Idaho law. ity. laws resulted from the Groat, Swanson the Court unique existing early during conditions held in this state a stockman could not days of the development western when vast deliberately drive animals onto the un- grazing sparse popu- areas of land and the escape fenced land of another living lation then in the area it more made for trespass, even if the practical rela- to fence animals out of the tively applicable. small of land devoted to the open sections extent of larg- farming than to fence cattle in on the range rule was not The rule decided. applied upon the the Swanson whether land action open was range. The Court was open which the animals were driven was not called upon to define what lands in not, following the range or as evidenced Idaho were governed by open the range passage: rules. willfully deliberately who and “[0]ne question presented Kelly in v. Ea- upon drives his stock the lands of anoth- ston, (1922), 207 P. 129 was er, uninclosed, whether inclosed and whether landlord could open claim range holds, grazes upon herds and them such privileges against his tenant. The Court objections’ the and ‘protests lands over held that the open range rules not apply do damages the is liable in the owner to the relation existing between landlord willful, trespass. Such deliberate and in- and his tenant. again, Once the Court was justified tentional conduct cannot be called to determine extent the the theory the that stock had a open range in Idaho. their right of own accord to roam over cases, These early cited the graze and such land.” 12 at Idaho as providing a case law open definition of (emphasis 85 P. supplied). at 385 range inconsistent with legislature’s the City Daly, In the supra, Bellevue definitions in -2402, I.C. §§ 25-2118 and plaintiff city was held not entitled have enacted in 1961 and 1963 respectively, sim- enjoined the al- defendant landowner from ply do not judicial contain the definitions lowing freely upon his cattle to roam his that the majority claims to in find them. polluting own land because the herd was was Each concerned with an issue different drinking city water in unfenced ditches from that case, which we e., face in this i. the Court pasturage. which crossed what lands in subject Idaho are to the law rules, noting referred to the open range. the How the legislatures of incongruous require that it would be our sister approached states have open defendant landowner fence his cattle off range problem does not relieve us of the easement his own land city’s across duty to examine our own law regarding the requirement such would fencing while no open range privilege in it Idaho as exists open if the have existed on today light in of the recent enactments of said, “Certainly range lands. The Court he legislature our and the conditions which any on right cannot have less his own lands prevail now in the state. Our statutes con- and in his own field than he would on have template three classes into which lands in public public common or 14 domain.” may purposes determining fall for 550, Idaho at P. at 1038. The court did (1) of livestock owners: whether land surrounding decide range”, as defined open range. was concededly ditch It -2402, where cattle have been custom The court merely postulating not. roam; (2) vil- open that range had land been lages towns, and where owners liable required owner would not have been trespassing ani- ditch, fence the cattle out that mals regard “without to the condition of his surely private ground own he would fence,” 25-2408; (3) I.C. § non- [their] have greater obligation. no open range, case, as the such land in this Brown, in Strong (1) (2), which is neither in class nor where subject range lands to the open owner of strict not been imposed has on ani- damages held liable rule was not to be owners, mal but where the custom has not running which were graze been to allow animals to unfenced. injured by pits or falling into excavations Schoessler, on the of the owner. There was In Soran v. 25-2118,2 question (1964),

no but construing involved P.2d I.C. § of, controlling possession open duty domestic ani- “25-2118. Animals on —No highway. person owning, range, from mal shall have the —No findings ports Idaho there recognized regard; this Court also with respect of land are three classifications sustains trial court’s conclusion that (1) governing to laws livestock control: appellant ‘failed to act aas reasonable range, owner has prudent person respect in; (2) fence animals herd dis- maintenance this pasture fence tricts, strictly where an owner is liable for allowing his public livestock to be on a trespassing upon his animals do in highway’; respondent acted as a rea- others; (3) land the lands of neither prudent person sonable and at the times open range nor in a herd district. 87 Idaho mentioned; appellant of guilty at issue in P.2d at 163. The Soran negligence premises; in the and that such a was whether a owner was liable to negligence proximate constituted the a damages resulted in motorist which of respondent’s damage.” cause public with cow on a collision defendant’s 394 P.2d at 163. highway. states that a my in opinion, those of areas the state damages in a stockman is not liable for such where tradition and custom livestock if the collision animal involved have not been allowed to roam and graze open “open range,” defining range on unfenced, but statutory where no herd dis- noted above. The accident in Soran did not landowners, trict has been formed a in statutory occur a herd district. How- negligence standard should be used to de- ever, the Court held that collision did liability termine the of a livestock owner in “open occur either: damages done his animals in tres- “There no evidence in adduced this [is] passing, upon highways whether as in Sor- particular cause to show that in the area an, or the lands of another. This appellant’s accident occurred would strike a ground middle between the cattle, custom, license, lease, per- no liability open rule on range and the strict mit, grazed permitted were on to roam liability imposed upon animal owners in unenclosed lands such in as referred to herd district. The standard to which a tres- such section of the statute. passing animal’s owner would be held under “As hereinbefore stated pas- the fenced approach would be a reasonably that of land, by appellant, ture owned was nei- prudent owner particular in the ther nor located a herd ” Schoessler, area involved. Soran v. supra. district area. . . . 87 Idaho at injustice No to stockmen they can arise if P.2d at required are comply to with normal Upon finding did range privileges practices of restraining herds their involved, not exist in the area the Court prevail in they graze the areas where held that defendant stockman should animals. if negligent containing liable he were his herd, liability since neither the of principles While in this case the district court found privilege district nor cattleman’s that “the through defendant’s cattle broke applicable fences leased the de- the case. county fendant and crossed the road and hay went on to appellant

“The evidence shows fields the plaintiff Maguire,” the had allowed the fence to deteriorate and court made no finding that that at the time the accident involved defendant “failed to act as a reasonable prudent person this cause the fence to respect did conform with to fences, prescribed standards maintenance pasture of this fence 35-102; sup- the evidence allowing go upon livestock” to the lands any highway to villages such animal off on such losed lands outside of range, custom, license, and shall not be liable for which cattle lease, injury any person riding permit, grazed vehicle or for there- in, a collision between the vehicle roam.” ‘Open range’ animal. means all uninc- Schoessler, the plaintiff. Soran the cattle cross neighbor’s land, onto a 425, 431, 394 P.2d 160. Without such liability plaintiff results. The Maguire finding negligence on the defendant’s made the same arguments in this case and part, no would accrue. The district introduced evidence the effect that Por- court concluded that defendant’s cattle had ter, Yanke, the lessor appellant ad- county get plaintiff crossed the road to vised place Yanke not to more than one Maguire’s property and such crossing land; hundred head cattle on the never- illegal an trespass, relying constituted placed theless Yanke thirty one hundred Schoessler, However, supra. Soran Sor- calves, head of cattle with their together highways an does not establish as zones eight with bulls on the land. The leased creating absolute to the owner of trial court concluded that discrepancy “this any cattle which crosses them. Soran appear does not to be sufficient warrant merely highways established for what the punitive damages.” The court’s trial obser- should now Court confirm to be the rule vation with regard doubt correct regard to all land which is neither punitive award because in open range nor a herd district —that puni- order to have sustained an award of owner of cattle must act as reasonable overstocking tive it would prudent person respect and have been to show that necessary the action pasture maintenance of his fences and the wrongdoer “wanton, malicious, controlling his cattle. gross outrageous,” or and majority opinion also fails to discuss facts were such to imply as malice and principal one issues in the case raised oppression. Stolworthy, Cox v. Legg recent decision of this Court in 683, 685, However, (1972). P.2d Barinaga, P.2d 345 Legg v. Barinaga, makes it that clear Legg In the case respondents were knowing mere overstocking upon of land raising sheep 12,000 on approximately acres which put pasture cattle are renders appel- of owned and leased land while the owner of the they cattle liable if leave raising lants were cattle on approximately land trespass upon and the lands of another. land, 1,200 grazing acres of unfenced to- only Legg Not does the seriously case con- gether with certain land. grazing fenced flict with the expansive open range privi- opinion the Court noted that “re- lege which the opinion grants in spondents appellants have twelve to livestock, this case to owners but it seems boundary, thirteen miles of common none of requires to me it also that matter be opinion of Court which is fenced.” The to specifically remanded the trial court “appellants court notes that trial found plaintiff’s theory grazing overstocked their land to the had land, defendant Yanke overstocked his thus degree continuously their cattle causing his cattle break tres- out and to repeatedly respondent’s invaded land in pass plaintiff’s onto the land. The trial water,” and concluded search of food court’s conclusion that the over- amount of appel- trespass “a wilful resulted when stocking, which discrep- he described respon- the lands of lant’s cattle invaded ancy. between what the landlord advised Idaho at 440 P.2d at dents.” 92 Yanke place on the land and the amount appeal This Court said 346-348. placed of cattle which Yanke fact turning mere loose of livestock while “the land, appear did “not to be sufficient upon the premises public own one’s punitive damages” pre- warrant would not generally recognized has domain however, finding, clude the trial court from per constituting a wilful intention- se overstocking to war- that the was sufficient knew, that one notwithstanding trespass, al case. Legg rant tort under the known, that the livestock should have Therefore, land,” judgment I would reverse the might stray to nevertheless another’s over- of the the case trespass results from the district court and remand where the (1) stocking grazing causing for a new trial to determine whether the of one’s own negligent, defendant Yanke was under case, in the

ruling of this Court in the Soran managing of his fences and

maintenance prior trespass of his into

cattle cattle field; (2) deter-

Maguire’s alfalfa placed or not more

mine whether Yanke carry the land than would

cattle

resulting breaking in the out Maguire’s property,

trespassing onto under

would establish Yanke Legg case.

SHEPARD, J.,C. concurs.

590 P.2d 99 CARE, INC., HEALTH an

NORTHWEST Martin, Lojek, Donald W. Chapman, Corporation, Convales- Caldwell Boise, Hyde, Martin & Home, for plaintiffs-appel- cent Cascade Convalescent Home, lants. Home, Emmett Convalescent Home, Nampa

Lewiston Convalescent Gen., Leroy, Atty. David H. James F. Home, Weiser Convalescent Convales- Wickham, Gen., Boise, Atty. Asst. for de- Home, Plaintiffs-Appellants, cent fendant-respondent. IDAHO OF DEPARTMENT HEALTH DONALDSON, Justice. WELFARE, AND Appellants, Care, Inc., Northwest Health Defendant-Respondent. al., et appeal from the decision and order No. 12762. the district granting respondent’s, court Welfare, Idaho Department of Health

Supreme Court Idaho. motion to dismiss for failure to file a cost Jan. 1979. pursuant 83(h), bond to Rule Idaho Rules of Civil January 17, 1977, Procedure. On Northwest Health brought petition Care judicial review and appeal in district court challenging an administrative decision of the department. Then January parties stipulated to an appeal procedure to the district Subsequent court. stipulation, department sub- mitted a written motion to dismiss the peti- plaintiffs’ tion for the failure file a cost bond ten days filing petition within 83(h). as required under I.R.C.P. North- west did file a cost bond July filing days But this occurred nineteen after (July 1, 1977) the effective date

Case Details

Case Name: Maguire v. Yanke

Court Name: Idaho Supreme Court

Date Published: Dec 5, 1978

Citation: 590 P.2d 85

Docket Number: 12596

Court Abbreviation: Idaho